Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: JUNE 27, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA WC MARTIN COUNTY COAL CORP. APPELLANT PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS COMPENSATION BOARD ACTION NO. WC CLARENCE HANEY; HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, MOORE, AND THOMPSON, JUDGES. THOMPSON, JUDGE: Martin County Coal Corp. appeals from an opinion and order of the Workers Compensation Board affirming in part, reversing in part and remanding a decision of the Administrative Law Judge (ALJ) awarding workers compensation benefits to Clarence Haney. Martin argues there was no substantial

2 evidence Haney sustained an injury within the meaning of Kentucky s Workers Compensation Act. It also contends the Board erroneously did not consider the deposition of Dr. Melissa Fletcher as evidence and erred when it reversed the ALJ s findings regarding the extent and duration of impairment. We affirm. Haney worked for Martin as an underground miner and mining superintendent for Martin for approximately 40 years before retiring at age 62. Haney testified he had been working by himself in the early hours of March 10, 2011, when he slipped and fell five or six feet from a forklift ladder, landed on his right side, and experienced sharp pain in his right side and right leg. He completed an accident report and finished his shift. After his pain progressively worsened, he retired on May 30, Haney testified that prior to his 2011 injury, he worked in the coal mines an average of 75 to 80 hours per week. He did not plan on retiring and to work until his death, which he stated would be up there at the mines. Because Haney sustained multiple work-related injuries while working for Martin, the record contains extensive medical history from a number of physicians regarding Haney s physical condition before and after the March 10, 2011 incident. The most significant injury related to this appeal is a back injury sustained on September 24, Following that injury, he was off work for five to six months, but was then released to return to work by two physicians without restrictions and returned to his normal duties working in Martin s coal mines. Haney did not file a workers compensation claim for the 2007 injury or any -2-

3 subsequent injuries until he filed the present claim. The medical testimony confirms that although Haney experienced back pain and was prescribed pain medications, he continued to perform his usual duties for Martin. The ALJ found Haney had not suffered a cumulative trauma injury and addressed whether Haney suffered a new compensable injury on March 10, Martin contended there were no objective medical findings that Haney suffered a new work-related injury on March 10, 2011, as defined in KRS (11). Ultimately, the ALJ, relying on Haney s testimony and Dr. Melissa Fletcher s and Dr. J. Rick Lyon s clinical examinations, determined Haney sustained a work-related injury on March 10, 2011, and is totally occupationally disabled due to the combined effects of his 2007 injury and March 10, 2011, injury. The ALJ also determined each injury resulted in a 50% occupational disability but that the 2007 injury caused a preexisting active disability and was not compensable. Therefore, the ALJ awarded permanent total disability (PTD) benefits based on 50% of the maximum 2011 PTD rate. The ALJ also awarded medical benefits for treatment of Haney s 2011 work-related injury. Martin appealed to the Board. In considering the parties respective arguments, the Board noted both parties cited the deposition testimony of Dr. Fletcher. However, unable to locate that deposition in the file and noting the ALJ did not refer to that deposition but relied only on Dr. Fletcher s medical records, the Board declined to consider any argument by the parties based on Dr. Fletcher s -3-

4 deposition. The Board affirmed the ALJ s decision regarding the award of PTD benefits, but sua sponte reversed the reduction of the award due to Haney s preexisting active and non-compensable disability. This appeal followed. KRS (2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact. The ALJ is the finder of fact and [w]here the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Substantial evidence is some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Although not the primary issue presented by Martin, we first address its contention that the Board erred when it did not consider Dr. Fletcher s deposition. Like the Board, we have not been able to locate Dr. Fletcher s deposition in the appellate record. Furthermore, we are convinced the medical evidence relied on by the ALJ was sufficient to support an award of PTD benefits. A compensable injury within the meaning of Kentucky s Workers Compensation Act is defined in KRS (1) as any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. KRS -4-

5 (33) defines objective medical findings as information gained through direct observation and testing of the patient applying objective or standardized methods[.] In Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, (Ky. 2001), the Supreme Court of Kentucky explained the requirements of KRS (1) and KRS (33), and what qualifies as an objective medical finding of a harmful change. The Court first clarified that a patient s complaints of symptoms clearly are not objective medical findings as the term is defined by KRS (33) and insufficient to prove an injury under Chapter 342. Id. at 762. However, the Court emphasized a physician s direct observations may be sufficient to prove an injury occurred when it stated: Id. We know of no reason why the existence of a harmful change could not be established, indirectly, through information gained by direct observation and/or testing applying objective or standardized methods that demonstrate the existence of symptoms of such a change. Furthermore, we know of no reason why a diagnosis which was derived from symptoms that were confirmed by direct objective and/or testing applying objective standardized methods would not comply with the requirements of KRS (1). We agree with the Board there were sufficient objective medical findings to support the ALJ s finding that Haney suffered an injury on March 10, As noted by the Board, the October 11, 2011 MRI report of Haney s lumbar spine and March 15, 2011 x-ray report reveal Haney had harmful changes within -5-

6 the lumbar and thoracic spine. Dr. Fletcher s March 15, 2011 report noted tenderness on the right side of his back. This was a symptom directly observed by Dr. Fletcher and a symptom not noted in her prior notes. This was also noted by by Dr. Lyon when he examined him on April 26, We agree with the Board that the physicians direct observations of tenderness in Haney s lower right back constituted objective evidence of a harmful change that resulted from Haney s March 10, 2011 fall. Additionally, on April 26, 2012, Dr. Lyon reported Haney had right calf atrophy that resulted in a 1.5 centimeter calf circumference differential. As noted by the Board there is no reference to right calf atrophy of any degree in any of the medical records other than that contained in Dr. Lyon s 2012 report. by Dr. Anbu Nadar: The Board further recognized the evidence before the ALJ provided [A]lthough the ALJ did not state he specifically relied upon Dr. Nadar in determining Haney sustained a workrelated injury, we conclude he did. The ALJ s reliance upon Dr. Nadar s impairment ratings in determining Haney s pre-existing 8% impairment and his present impairment of 15% firmly establishes he relied upon Dr. Nadar in determining Haney sustained a work-related injury. In his December 13, 2011, report, Dr. Nadar set out the results of his clinical examination: [Haney] has tenderness over the dorsal and lumbar spine, more so over the lumbosacral area on the right side. His range of motion was measured using bubble inclinometer. He has a forward flexion of 30 degrees, extension of 10 degrees, lateral flexion of 25 degrees on either side. Sitting straight-leg -6-

7 raising is 0 to 90 degrees; supine straight-leg raising is 0 to 45 degrees on the left side and 0 to 40 degrees on the right side and elicits back and leg pain. His reflexes are intact. Sensory examination fails to reveal any focal deficit. Martin suggests the Board usurped the ALJ s role as fact-finder by engaging in a de novo review of the evidence. We disagree. Although the Board referred to evidence presented to the ALJ but not discussed in the ALJ s decision, it did not disturb the ALJ s factual findings. The Board properly limited its review to the record and whether there was substantial evidence to support the ALJ s determination that Haney suffered a compensable injury. Because of Haney s prior injuries, the medical records submitted are voluminous and, we admit, conflicting. However, we may not reverse the ALJ merely because some evidence may support a different outcome. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The final issue presented by Martin is whether the Board erred when it reversed and remanded the ALJ s finding Haney was 50% occupationally disabled due to his 2007 injury and the reduction of Haney s benefits for a finding of an 8% pre-injury impairment based on Dr. Nadar s opinion. Although not presented by Haney as an issue on appeal, it was within the Board s authority to sua sponte review an award of benefits not in conformity with KRS Chapter 342. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288, 294 (Ky. 2004). -7-

8 The ALJ determined Haney s 2007 work-related injury resulted in an 8% impairment which he translated into a 50% occupational disability that was not compensable. The Board concluded the ALJ erred as a matter of law because Haney had at most a permanent partial disability based on an 8% impairment following the 2007 injury and returned to work performing all his job duties until his March 10, 2011 injury. Therefore, any disability resulting from the September 24, 2007, injury must be based on the 8% functional impairment rating and calculated in accordance with the statutory formula for determining a permanent partial disability. The Board concluded Fleming v. Windchy, 953 S.W.2d 604 (Ky. 1997) and Whittaker v. Fleming, 25 S.W.3d 460 (Ky. 2000), and the concept of excess disability expressed in those cases controlled. It rejected Martin s contention Roberts Bros. Coal Co., v. Robinson, 113 S.W.3d 181 (Ky. 2003) was applicable. Roberts Bros. held an exclusion from a total disability award must be based on preexisting disability while an exclusion from a partial disability must be based on a preexisting impairment. Id. at 183. We agree the ALJ s reduction of Haney s award based on 50% preexisting occupation disability is illogical and unjust. We adopt the Board s reasoning as expressed in that portion of its opinion reversing and remanding the ALJ s decision: Significantly, had Haney timely asserted a claim for the 2007 injury, at most, he would have been entitled to an award of PPD benefits based on an 8% impairment. -8-

9 Under no circumstances could Haney have been awarded benefits based on a occupational disability of 50% due to the 2007 injury. Even though the ALJ believed Haney may have had an occupational disability of 50%, the awarded for the 2007 injury could only be based upon an 8% impairment further reduced by the factor of.85. Consequently, the ALJ s award.unjustly penalizes Haney and grants Martin County a windfall because of Haney s failure to timely file claim for the 2007 injury. Based on the foregoing, the opinion and order of the Workers Compensation Board is affirmed. DIXON, JUDGE, CONCURS. MOORE, JUDGE, DISSENTS AND FILES SEPARATE OPINION. MOORE, JUDGE, DISSENTING: Clarence Haney s service to Martin underscores a powerful work ethic. For almost forty years he labored loyally for Martin Coal. In spite of suffering pain from multiple work-related injuries, he often worked eighty hours each week until the date of his retirement. Haney s failure to seek Worker s Compensation benefits until January, 2012, however, underscores how truly unfortunate this case is. While it is abundantly clear that Haney continues to suffer pain from multiple work-related injuries, in my view and upon exhaustive review of the evidence of record, Haney s pain predated March 10, 2011, and originated from other, non-compensable, injuries. Accordingly, I would reverse. -9-

10 BRIEF FOR APPELLANT: Thomas C. Donkin Lexington, Kentucky BRIEF FOR APPELLEE: Bobby Rowe Prestonsburg, Kentucky -10-